Opinion
No. 2-15-0766
08-21-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RHYS JONES, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Kendall County.
No. 12-CF-369
Honorable Timothy J. McCann, Judge, Presiding.
JUSTICE SCHOSTOK delivered the judgment of the court.
Presiding Justice Hudson and Justice Birkett concurred in the judgment.
ORDER
¶ 1 Held: The trial court did not abuse its discretion in sentencing the defendant.
¶ 2 On February 9, 2015, the defendant, Rhys Jones, pled guilty to one count of predatory criminal sexual assault of a child (720 ILCS 5/11-1.4(a)(1) (West 2012)) and was sentenced to eight years' imprisonment. On appeal, the defendant argues that his sentence was excessive. We affirm.
¶ 3 BACKGROUND
¶ 4 On November 14, 2012, the defendant was charged by indictment with one count of predatory criminal sexual assault of a child (720 ILCS 5/11-1.4(a)(1) (West 2010)). The
indictment alleged that the defendant placed his mouth on the penis of A.W., who was under 13 years of age.
¶ 5 On February 9, 2015, the defendant executed a jury waiver and entered a non-negotiated guilty plea to the charged offense. The State set forth a factual basis for the plea, specifically that the evidence would show: (1) the defendant was dating S.W., the mother of A.W., who was two years old at the time of the incident; (2) on December 31, 2011, the defendant and S.W. hosted a New Year's Eve party where alcohol was consumed; (3) during the party, the defendant went to a bedroom to change A.W.'s diaper; (4) S.W. went to the bedroom and saw the defendant performing fellatio on A.W.; and (5) the defendant argued with S.W. then left the home. The defendant stipulated to the factual basis. The trial court found the factual basis to be sufficient and accepted the defendant's plea.
¶ 6 On April 13, 2015, the trial court held a sentencing hearing. The trial court noted that it considered the presentence investigation report and an addendum to the report. It also considered the financial impact statement. The State submitted the grand jury testimony and the indictment for the trial court's consideration. The defendant presented the testimony of Tom Thompson, a lifelong friend. Thompson testified that he had been friends with the defendant since he was in seventh grade. He and the defendant grew up together in Colorado and have remained in contact since that time. Thompson described the defendant as kind, peaceful, intelligent, and a great computer programmer. Thompson also testified that the defendant was a very good father and was attentive to his children.
¶ 7 The defendant also submitted copies of his psychological evaluations that had been prepared prior to the entry of his plea, as well as four letters of support from other friends and family members. The letters of support detailed the defendant's work history, responsible behavior, and general strong character. One of the letters was from S.W., the victim's mother.
S.W. wrote that the defendant exhibited "sincerity, honesty, humor, humbleness, and intelligence." She acknowledged the defendant's "flaws," but noted that he "spent a significant amount of time in counseling working to make himself a better person" and believed that "his issues have been resolved."
¶ 8 The State sought a prison sentence of 10 years. The State argued that the circumstances of the case required more than the minimum sentence. Specifically, the State noted that A.W.'s mother was on her way to change his diaper when the defendant interceded, ostensibly to take care of the child. However, rather than take care of A.W., he abused A.W. The State also noted that the defendant had been a victim of sexual abuse at a young age. In his psychological evaluations, the defendant indicated that he saw a picture of his offender and that this had triggered his actions against A.W. The State argued that this showed the defendant believed he had no control over his actions and used his prior victimization as an excuse.
¶ 9 Defense counsel requested that the trial court impose the minimum sentence of six years. Defense counsel argued that, rather than making excuses for his behavior, the defendant owned it, which was why he pled guilty and did not put the victim or the victim's mother through a trial. Defense counsel argued that the defendant was a good man, a good father, a good provider, a good citizen, and had never been in trouble before in his life. When the defendant moved out of S.W.'s home after the incident at issue, he had to start paying to live in a motel. The defendant could no longer afford to pay child support to his ex-wife. However, the defendant did not just stop paying. Rather, the defendant signed a quitclaim deed, giving his ex-wife his half of the equity in their marital home. Defense counsel also noted that, after the incident at issue, the defendant sought counseling on his own behalf. Further, the defendant was so filled with grief and remorse, that he attempted suicide on two occasions following the incident.
¶ 10 Defense counsel further noted that the presentence investigation report (PSI) established that the defendant had been sexually abused by an older step-brother as a child and had not received any treatment or counseling for that abuse. Defense counsel noted that the defendant's psychological report indicated that he scored a "moderate-low" risk for reoffending on the Static 99 Risk Assessment, and he was classified as being a "low" risk of reoffending in the updated Static 99R Risk Assessment. Defense counsel requested that the trial court consider the following in mitigation: the defendant's conduct did not threaten serious physical harm; the defendant did not contemplate serious physical harm to another; the defendant had no history of prior delinquency or criminal history; the defendant's conduct was the result of circumstances unlikely to recur; the defendant was unlikely to commit another crime; and the defendant's imprisonment would entail excessive hardship to his dependents. Finally, the defendant gave a statement in allocution, expressing great remorse and sadness for his actions and indicating that he would serve his sentence with humility and dignity and begin the process of redeeming himself and rebuilding his life.
¶ 11 The trial court acknowledged that the defendant was the victim of abuse and did not have a criminal history. Nonetheless, the trial court stated that it also considered that "when [the defendant] chose to act out on someone, [he] chose a victim that could not protest or ever inform anyone about what had taken place. That's true victimization." The trial court sentenced the defendant to eight years' imprisonment.
¶ 12 On May 5, 2015, the defendant filed a motion to reconsider his sentence, alleging that his sentence was excessive. The defendant claimed that the trial court failed to consider all the factors in mitigation that were presented at his sentencing hearing. The defendant noted that the State had not argued any statutory factors in aggravation and had not presented a victim impact statement. The defendant argued that his sentence was excessive in light of the nature and
circumstances of the offense, the factors in mitigation, the defendant's lack of criminal history, his documented counseling and treatment, and his potential for rehabilitation.
¶ 13 On July 27, 2015, a hearing was held on the defendant's motion. Defense counsel noted that, at sentencing, the trial court commented that the defendant acted out on someone who was too young to report the incident. Defense counsel argued that the victim's age was inherent in the offense and that the trial court improperly considered the victim's age as an enhancement in sentencing the defendant to more than the minimum. Defense counsel further argued that the trial court did not properly consider all the factors in mitigation, which were presented at the original sentencing hearing, and that the defendant had considerable potential for rehabilitation.
¶ 14 Following argument, the trial court stated that, while it did not mention all the factors it considered, it was aware of all the factors in mitigation. The trial court noted that the sentence was within the range permitted by statute. The trial court stated that there was a difference between an offense committed against an infant, as opposed to a 10-year old child. While this was not specifically a factor in aggravation, the trial court believed it was a factor that the court could consider. The trial court reiterated:
"This was truly a victim that had no means to cry out and that is the difference to me. I don't believe that I'm using it in terms of any kind of an extended term or enhancement in that regard but I think it is a factor which I can consider with all of the other factors as I did in this case."
The trial court thus denied the defendant's motion to reconsider sentence. The defendant then filed a timely notice of appeal.
¶ 15 ANALYSIS
¶ 16 On appeal, the defendant argues that the trial court abused its discretion in sentencing him to eight years' imprisonment. The defendant contends that he was entitled to the minimum
sentence of six years because there were no factors in aggravation, he had no criminal history, showed sincere remorse, possessed a significant employment and education background, had a strong community of family and friends, and was unlikely to reoffend. The defendant argues that the trial court placed too much weight on the victim's age and inability to outcry, and not enough weight on the defendant's lack of criminal history. The defendant acknowledges that his sentence was within the statutory limits but argues that it exceeds what is necessary to provide adequate punishment and protect the public. Thus, the defendant contends that his sentence violates the spirit and purpose of the law.
¶ 17 A reasoned judgment as to the proper penalty to be imposed must be based on the particular circumstances of each individual case. People v. Saldivar, 113 Ill. 2d 256, 268 (1986). "Such a judgment depends upon many relevant factors, including the defendant's demeanor, habits, age, mentality, credibility, general moral character, and social environment [citations], as well as the nature and circumstances of the offense, including the nature and extent of each element of the offense as committed by the defendant [citations]." (Emphasis and internal quotation marks omitted.) Id. at 268-69. These factors also include the defendant's criminal history, the defendant's potential for reform, and the recognized interest in protecting the public and in providing a deterrent. People v. Wilson, 257 Ill. App. 3d 670, 704-05 (1993). The trial court is in a better position than a reviewing court to consider such factors, and its decisions with respect to sentencing are accorded great weight and deference. People v. Perruquet, 68 Ill. 2d 149, 154 (1977). Accordingly, the trial court has discretion in imposing a sentence (id.), and there is a strong presumption that the sentence is based on proper legal reasoning (People v. Morrow, 2014 IL App (2d) 130718, ¶ 14). A trial court abuses its discretion only if the sentence is "manifestly disproportionate to the crime" or "greatly at variance with the spirit and purpose of the law." People v. Watt, 2013 IL App (2d) 120183, ¶ 49.
¶ 18 In the present case, the defendant essentially argues that the trial court gave insufficient weight to the mitigating evidence. We find this contention to be without merit. There is a presumption that a trial court considered all relevant factors in determining a sentence, and that presumption will not be overcome without explicit evidence from the record that the trial court did not consider mitigating factors. People v. Payne, 294 Ill. App. 3d 254, 260 (1998). Such a showing was not made in this case. The trial court fully reviewed all evidence before it, and in ruling on the defendant's motion to reconsider sentence, the trial court explicitly stated that it was well aware of all the factors in mitigation. As noted, it is not our province to reweigh those factors. The defendant was subject to a sentencing range between 6 and 60 years' imprisonment. (720 ILCS 5/11-1.40(b)(1) (West 2014)). The sentence of eight years' imprisonment was within the permissible range and well under the statutory maximum. Given the trial court's broad discretion in sentencing and the seriousness of the crime, we cannot say that the defendant's sentence was greatly at variance with the spirit and the purpose of the law.
¶ 19 The defendant argues that it was improper for the trial court to consider the victim's age and inability to outcry because the victim's age was inherent to the charged offense. We acknowledge that it is inappropriate for a court to consider in aggravation a factor that is inherent in the offense. People v. Dowding, 388 Ill. App. 3d 936, 942 (2009). In other words, a single factor cannot be used both as an element of an offense and as a basis for imposing "a harsher sentence than might otherwise have been imposed." People v. Gonzalez, 151 Ill. 2d 79, 83-84 (1992). The defendant bears the burden of affirmatively establishing that his sentence was based on improper considerations, and the reviewing court should consider the record as a whole rather than focusing on isolated statements by the trial court. Dowding, 388 Ill. App. 3d at 943. Determining whether the trial court relied on improper considerations in imposing the sentence
involves a question of law, and our review is de novo. People v. Abdelhadi, 2012 IL App (2d) 111053, ¶ 8.
¶ 20 In the present case, considering the record as a whole, the trial court did not commit error. It is not improper for a court to consider as an aggravating factor that the defendant's conduct caused or threatened serious harm, even when the charged offense involves harm to a victim or the threat of harm, as long as the court focuses on the gravity of the defendant's specific conduct rather than on any result that is inherent in the offense as charged. See People v. Saldivar, 113 Ill. 2d 256, 265 (1986) (holding that while it would have been appropriate for the trial court to consider the degree or gravity of the defendant's conduct as a factor in aggravation, the trial court erred in focusing primarily on the end result of the defendant's conduct, i.e., the death of the victim, because that was inherent in the offense of involuntary manslaughter).
¶ 21 Here, the trial court did not simply focus on the victim's age, i.e., that the victim was less than 13 years of age, which was implicit in the charged offense. Rather, the trial court focused on the gravity of the defendant's conduct in that a two-year old victim did not have the ability to report the abuse or make a plea for help, as compared to a victim who was 10, 11, or 12 years old. The trial court properly focused on the degree of harm and the nature and circumstance of the offense. We thus reject the defendant's argument that the trial court considered an improper factor in sentencing him.
¶ 22 CONCLUSION
¶ 23 For the foregoing reasons, the judgment of the circuit court of Kendall County is affirmed. As part of our judgment, we grant the State's request that the defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2012); see also People v. Nicholls, 71 Ill. 2d 166, 178 (1978).
¶ 24 Affirmed.